R v Blundell

Case [2019] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v BLUNDELL

[2019] SASCFC 84

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)

8 July 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - VISUAL IDENTIFICATION GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN

The appellant was convicted of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

At just after midnight, Mr Ward was assaulted with a large metal garden ornament at a block of units. The only issue was whether the appellant was the perpetrator.

Mr Ward described the incident as a blur and selected a photograph of a different person in a photographic identification procedure. Ms Castellari, who resided at Unit 4, did not see the assault but gave evidence that she saw, from her upstairs bedroom window, the appellant as he looked up for “a split second” as her sensor light came on; he was walking towards Unit 3 (where his mother resided) and was carrying a phone in his left hand. Ms Williams, the partner of Mr Ward, resided at Unit 6 and gave evidence that she came out during the assault and saw the perpetrator’s face from a metre away. During her 000 call she described him as “a random guy” and said that she did not “even really know what he looked like”.

On 24 March 2016, a meeting was held at Unit 6 between Mr Ward, Ms Williams, Ms Castellari and a Housing SA representative at which someone informed Ms Williams that the appellant was the person who assaulted Mr Ward.

On 6 April 2016, Ms Castellari and Ms Williams participated in separate photographic identification procedures. Both Ms Castellari and Ms Williams selected a photograph of the appellant.

The appellant relied on two grounds of appeal. (1) That the verdict is unsafe and unsatisfactory; and (2) that there was a miscarriage of justice occasioned by the learned trial Judge’s directions on the topic of the identity of the assailant.

Held, per Peek J (Kourakis CJ and Hughes J agreeing), allowing the appeal and ordering a re-trial:

1. The decision of the High Court in Domican v The Queen (1992) 173 CLR 555 requires that extensive directions be given to the jury as to the dangers of identification evidence tailored to the facts of the particular case. Section 34AB(3) of the Evidence Act 1929 (SA) does not alter that requirement. Craig v The King (1933) 49 CLR 429; Alexander v The Queen (1981) 145 CLR 395; Pitkin v The Queen (1995) 130 ALR 35; Smith v The Queen (2001) 206…

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R v Blundell [2019] SASCFC 84
Case
[2019] SASCFC 84
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Peek and Hughes JJ, heard an appeal by the applicant against his conviction for assault occasioning actual bodily harm. The central dispute concerned the adequacy of the trial judge's directions to the jury regarding the identification evidence presented by the prosecution.

The legal issues before the Court were whether the verdict was unsafe and unsatisfactory, and whether a miscarriage of justice had occurred due to the trial judge's directions on the identification evidence. Specifically, the grounds of appeal alleged that the judge failed to adequately direct the jury on aspects of the identification evidence that undermined the prosecution's case, that the judge erroneously presented the defence case as one of concoction or independent mistake by witnesses, and that the judge refused to excuse the jury during submissions for re-direction, thereby diminishing the authority of any subsequent re-directions.

The Court considered the principles established in *Domican v The Queen* and the requirements of s 34AB(4) of the *Evidence Act 1929* (SA). These authorities mandate that where identification evidence forms a significant part of the proof of guilt, a judge must provide cogent and effective warnings to the jury about the dangers of convicting on such evidence, particularly when its reliability is disputed. The warning must be specific to the circumstances of the case, drawing the jury's attention to any weaknesses in the identification evidence, and must carry the authority of the judge's office, rather than merely referring to counsel's arguments. The Court noted that the identification evidence of Ms Williams was critical, as without it, the remaining evidence could not support a guilty verdict.

The Court allowed the appeal, quashed the conviction, and ordered a new trial. This outcome was based on the finding that the trial judge's directions on the identification evidence were inadequate, failing to adequately address the weaknesses in Ms Williams' identification and presenting the defence case in a manner that suggested concoction or mistake, thereby occasioning a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A large metal garden ornament (approximately 80cm long) that was clearly the weapon used to assault Mr Ward was found discarded in shrubs outside Unit 1. A swab was taken from the top of it which produced a mixed DNA profile with two contributors. There was extremely strong support for the proposition that Mr Ward was a contributor to the profile; and very strong support for the proposition that the appellant was not a contributor. I consider that one should proceed on the basis that the analysis showed two contributors, one being the victim and the other an unknown person, not being the appellant.The lack of weight of the evidence if one subtracted that of Ms Williams I consider it to be clear that if one were to subtract the identification evidence of Ms Williams from the case, the balance of the evidence could not support a guilty verdict. While the evidence of Ms Castellari may raise suspicion of the appellant, it goes little beyond showing that he was seen at a relevant time walking towards Unit 3, a place where he used to go quite innocently (and at which time Ms Castellari thought he was carrying a phone, not a weapon). Such evidence (taken together with the rest of the evidence) could not eliminate the possibility that the assault was the work of someone else. It was therefore really quite critical that clear and comprehensive directions concerning the evidence of Ms Williams, and all relevant matters surrounding it, were given to the jury. The grounds of appeal The amended grounds of appeal were as follows:1. The verdict is unsafe and unsatisfactory; and 2. There was a miscarriage of justice occasioned by the learned trial judge’s directions on the topic of the identity of the assailant.Particulars:2.1 The learned trial judge did not, or did not adequately, direct as to the particular aspects of the recognition/identification evidence that undermined the prosecution case;2.2 The learned trial judge erroneously presented the defence case to the jury on the basis of concoction and/or independent mistake on the part of the witnesses Williams and Castellari;2.3 The learned trial judge refused to excuse the jury while counsel made submissions as to re-direction at the close of the summing up, such that the re-directions lost the imprimatur of the Court. I will first consider Ground 2 as a whole and then proceed to Ground 1. The principles in the High Court decision of Domican v The Queen and the requirement in 34AB(4) of the Evidence Act SA 1929 In 1992 in Domican v The Queen, the High Court held that extensive directions should be given to the jury as to the dangers of identification evidence. Thus, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:[1]Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. … Consequently, the jury must be instructed “as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case a warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. [Emphasis added] [Citations omitted][1] (1992) l73 CLR 555, 561.

Decision

Reasons for decision

I will first consider Ground 2 as a whole and then proceed to Ground 1. The principles in the High Court decision of Domican v The Queen and the requirement in 34AB(4) of the Evidence Act SA 1929 In 1992 in Domican v The Queen, the High Court held that extensive directions should be given to the jury as to the dangers of identification evidence. Thus, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:[1]Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. … Consequently, the jury must be instructed “as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case a warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. [Emphasis added] [Citations omitted][1] (1992) l73 CLR 555, 561. Reference may also be made to other High Court judgments such as Craig v The King,[2] Alexander v The Queen,[3] Pitkin v The Queen,[4] Smith v The Queen[5] and Festa v The Queen.[6] [2] (1933) 49 CLR 429.[3] (1981) 145 CLR 395, 409 (Stephen J).[4] (1995) 130 ALR 35, 38-39 (Deane, Toohey and McHugh JJ).[5] (2001) 206 CLR 650, 667-668 [55]-[56] (Kirby J).[6] (2001) 208 CLR 593, 643 (Kirby J). Section 34AB(4) of the Evidence Act 1929 provides: 34AB—Identification evidence(1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line‑up of persons.(2) In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—(a) —(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or(b)the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).(3) In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury—(a) of the need for caution before accepting identification evidence; and(b)of the reasons for the need for caution, both generally and in the circumstances of the case.(4)In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line‑up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.(5) To avoid doubt, this section does not—(a) make evidence admissible that would otherwise be inadmissible; or(b) affect the court's discretion to exclude evidence.(6) In this section—identity parade means a contemporaneous presentation (whether by a physical line‑up or by means of images) of a number of persons to a witness for the purpose of identifying a person.

Ratio Decidendi

Legal Principle Established

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